Employment History; Verification and Criminal Records Check.

SUMMARY: The FAA proposes to amend the regulations that require an

access investigation, including a fingerprint-based criminal history

record check in certain cases, for unescorted access privileges to

security areas at airports. This proposal would extend the requirement

for an access investigation (which would be renamed ``employment

background investigation'') to persons who perform checkpoint screening

functions at airports and their supervisors. The proposal also would

require airport operators and air carriers to audit employment

background investigations. The FAA proposes these changes in response

to the Federal Aviation Reauthorization Act of 1996 (Pub. L. 104-264).

This proposed rule is intended to improve the security of the airport

environment.

DATES: Comments must be received on or before May 19, 1997.

ADDRESSES: Comments on this notice may be delivered or mailed, in

triplicate, to: Federal Aviation Administration, Office of the Chief

Counsel, Attn: Rules Docket (AGC-200), Docket No. 28859 Room 915G, 800

Independence Avenue, SW., Washington, DC 20591. Comments submitted must

be marked: ``Docket No 28859.'' Comments may also be sent

electronically to the following internet address: 9-NPRM-

[email protected] Comments may be examined in Room 915G on weekdays,

except Federal holidays, between 8:30 a.m. and 5:00 p.m.

FOR FURTHER INFORMATION CONTACT:

Linda Valencia, Office of Civil Aviation Security Policy and Planning,

Civil Aviation Security Division, ACP-100, Federal Aviation

Administration, 800 Independence Avenue, SW., Washington, DC 20591,

telephone(202) 267-3413.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to participate in the making of the

proposed rule by submitting such written data, views, or arguments as

they may desire. Comments relating to the environmental, energy,

federalism, or economic impact that might result from adopting the

proposals in this notice are also invited. Substantive comments should

be accompanied by cost estimates. Comments must identify the regulatory

docket or notice number and be submitted in triplicate to the Rules

Docket address specified above.

All comments received, as well as a report summarizing each

substantive public contact with FAA personnel on this rulemaking, will

be filed in the docket. The docket is available for public inspection

before and after the comment closing date.

All comments received on or before the closing date will be

considered by the Administrator before taking action on this proposed

rulemaking. Late-filed comments will be considered to the extent

practicable. The proposals contained in this notice may be changed in

light of the comments received.

Commenters wishing the FAA to acknowledge receipt of their comments

submitted in response to this notice must include a pre-addressed,

stamped postcard with those comments on which the following statement

is made: ``Comments to Docket No. 28859.'' The postcard will be date

stamped and mailed to the commenter.

Availability of NPRMs

An electronic copy of this document may be downloaded using a modem

and suitable communications software from the FAA regulations section

of the Fedworld electronic bulletin board service (telephone: 703-321-

3339), the Federal Register's electronic bulletin board service

(telephone: 202-512-1661), or the FAA's Aviation Rulemaking Advisory

Committee Bulletin Board service (telephone: 202-267-5948).

Internet users may reach the FAA's web page at http://www.faa.gov

or the Federal Register's webpage at http://www.access.gpo.gov/su__

docs for access to recently published rulemaking documents.

Any person may obtain a copy of this NPRM by submitting to request

to the Federal Aviation Administration, Office of Rulemaking, ARM-1,

800 Independence Avenue, SW., Washington, DC 20591, or by calling (202)

267-9680. Communications must identify the notice number or docket

number of this NPRM.

Persons interested in being placed on the mailing list for future

NPRM's should request from the above office a copy of Advisory Circular

No. 11-2A, Notice of Proposed Rulemaking Distribution System, that

describes the application procedure.

History

The final rule on Unescorted Access Privilege was published in the

Federal Register on October 3, 1995 [60 FR 51854], and was responsive

to the Aviation Security Improvement Act of 1990. The rule initiated

the 10-year employment background investigation with the potential for

a Federal Bureau of Investigations (FBI) fingerprint-based criminal

history records check for those individuals who are granted unescorted

access to a security identification display area (SIDA) and those who

may authorize others to have unescorted access. (See 14 CFR section

107.25.) In that rulemaking, the FAA stated that it would continue to

evaluate the civil aviation security system to determine if further

changes were warranted.

The bombings of the Federal Building in Oklahoma City and the World

Trade Center Building in New York, along with information provided by

the U.S. intelligence community since those incidents occurred,

indicate that terrorists activities are no longer limited to the

``overseas'' arena. Intelligence information indicates that terrorist

are in the United States, working alone, developing ad-hoc groups, or

as members of established terrorist groups. The White House Commission

on Aviation Safety and Security identified a further need to enhance

the security at our nation's airports. In its final report, it

recommended that ``Given the risks associated with the potential

introduction of explosives into these areas, * * * screeners and

employees with access to secure areas be subject to criminal background

checks and FBI fingerprint checks.''

In Section 304 of the Federal Aviation Reauthorization Act of 1996,

Public Law 104-264 (hereafter ``the Act''), the Congress directed the

FAA to expand the use of both employment background investigations and

fingerprint-based criminal history records checks. Section 304 of the

Act directs the Administrator to issue regulations requiring the

application of the employment background investigation and, when

triggered by specific criteria, criminal history record checks to

individuals who screen passengers and property that will be carried in

a cabin onboard aircraft in air transportation or intrastate air

transportation and the supervisors of those individuals. It also

provides the Administrator with the discretionary authority to apply

those procedures to individuals who exercise security functions

associated with cargo and

[[Page 13263]]

baggage. In addition, Section 306 of the Act directs the Administrator

to provide for the periodic audit of the effectiveness of the criminal

history record checks. The FAA believes that the measures mandated by

Congress will help ensure the integrity of the airport environment.

General Discussion of the Proposal

General

Title 14 of the Code of Federal Regulations (CFR) Part 107

prescribes security requirements for airport operators in the areas of

access control, law enforcement support, and the submissions of airport

security programs for FAA approval. Title 14 CFR Part 108 prescribes

security rules for U.S. carriers. As applied to this proposal, the term

``air carrier'' refers to U.S. air carriers conducting passenger-

carrying operations.

This proposal would extend the requirement for an access

investigation (which would be renamed ``employment background

investigation'') to persons who perform checkpoint screening functions

at airports and their supervisors. Consistent with the statute and the

current rule, it also proposes that if any of four ``triggers'' is

alerted, the employment background investigation would not be

considered complete unless the individual is subject to a fingerprint-

based criminal history records check. The proposal would not bar all

individuals with a criminal history from performing checkpoint

screening functions. However, it would prohibit an individual convicted

of specific crimes from performing the identified security functions.

All other qualifications and training requirements remain in effect for

checkpoint security screeners and their supervisors.

As noted above, section 306 of the Act directs the FAA to provide

for the periodic audit of the effectiveness of the criminal history

records checks. The FAA in its oversight capacity has audited and will

continue to audit these checks. However, the FAA believes that self-

auditing is a valuable tool that assists effective rule implementation.

Therefore, this proposal also would require air carrier and airport

operators to audit their employment background investigations. In this

context, the FAA uses the term audit to indicate the use of random

sampling to review and evaluate the continuing compliance with the

regulatory requirements related to employment background

investigations. The proposed language addressing the audit is general

in nature because the specific details of the audit process will be

contained in security program amendments of each regulated party.

As noted before, section 304 of the Act provides the Administrator

with discretionary authority to require employment background

investigations for other individuals who exercise security functions

associated with baggage or cargo. The proposed rule does not include

language to expand the requirement for such investigations beyond

checkpoint screeners and their supervisors. In large part this is

because most air carrier baggage and cargo personnel currently have

unescorted access to the SIDA and thus already are subject to the

current background check rule. The FAA has considered whether to

include in this proposal those who perform security functions related

to cargo and baggage outside of the security identification display

area, and the FAA requests comments on which, if any, additional cargo

or baggage personnel should be included. Should those who perform other

security functions at the cargo facilities of indirect air carriers and

all-cargo carriers located at the airport be subject to the rule? How

far up the ``cargo handling process'' should the background employment

investigations apply? Should any cargo company on airport property or

just those companies adjacent to the air operations area be included?

Should a rule include cargo facilities not at the airport? Should

office workers be included? Commenters also should include cost

estimates for the recommendations in their comments. The final rule may

expand the scope of application based on the comments received.

Further, the FAA is proposing several other minor changes to the

rule. The first is applicable to air carriers and clarifies the

obligation of the air carriers to do employment background

investigations on persons who receive air carrier issued media that are

accepted by one or more airports for unescorted access within a SIDA.

Second, the proposed rule would require that a completed employment

background investigation file accompany the certification made by the

airport tenant to the airport operator under section 107.31(n)(2).

Third, the proposed rule spells out in more detail the requirements for

the maintenance and control of employment background investigation

files.

Readers familiar with the current sections 107.31 and 108.33

language will note a change in the arrangements of the paragraphs in

addition to the proposed language. The sequence of some paragraphs and

the addition of descriptive paragraph headings are proposed for

clarification.

Section-by-section analysis

Sections 108.33(a) and 107.31(a), Applicability

The FAA is proposing to clarify the applicability of the rule to

individuals who hold only air carrier issued media that permits

unescorted access within a SIDA. Proposed section 108.33(a)(2) would

require that an employment background investigation be completed for

each individual who is issued an air carrier identification that

authorizes such unescorted access, typically flight crews. The proposed

change addresses a situation not anticipated at the time the rule was

originally issued. It has come to the attention of the FAA that not

every flight crewmember is being issued an airport access media at

their ``home base,'' which would have required a certification be made

indicating that an employment background investigation had been

completed.

Additionally, the FAA is also proposing to expand the applicability

of the employment background investigation in Sec. 108.33 to require

that individuals performing screening functions associated with persons

and property entering the cabin of an aircraft be subjected to the same

investigative requirements for their employment history investigation.

The employment background investigation requirement also would apply to

those individuals holding the two immediate supervisory positions above

the screeners. These positions are commonly known as checkpoint

security supervisors (CSS's) and shift or site supervisors. These

generally are the only supervisors at the airport who have direct

control over the screening process. Under proposed paragraph (a)(3),

the employment background investigation requirement would apply

beginning on the effective date to all persons hired to perform the

identified function. Under paragraph (a)(4), all screeners and

supervisors hired before the effective date would have to have an

employment background investigation completed by 1 year after the

effective date.

Sections 108.33(b) and 107.31(b), Employment History Investigation

Required

These paragraphs describe the current 10-year employment background

requirement, which includes the verification of the most recent 5 years

of employment.

[[Page 13264]]

Sections 108.33(c) and 107.31(c), Investigative Steps

These paragraphs specify the steps which must be followed to

complete an employment background investigation. The responsibility

remains with the regulated party to determine when a fingerprint-based

criminal history record check has been triggered. Should the regulated

party make a determination to no longer consider the individual for a

position that requires a completed employment background investigation,

a criminal history record check would not be required. When a criminal

record is returned to the regulated party, that party must make a

comparison of the record to the list of disqualifying crimes. A

conviction of any of the listed crimes, in any jurisdiction, is

disqualifying.

An editorial change is proposed to the list of ``triggers'' that

determine when an individual will be fingerprinted. This proposal

reflects the four criteria as they are listed in the Act. There are no

additions to the current criteria; only the format is changed.

Sections 108.33(d) and 107.31(d), Individual Notification

A minor change is proposed that would require the regulated party

to identify a point of contact when it notifies the affected individual

that a criminal history record check will be conducted.

Sections 108.33(e) and 107.31(e), Fingerprint Processing

These paragraphs essentially match the current regulation with a

few points of clarification added. One clarification is proposed

because some airport operators and air carriers are now submitting

fingerprint cards obtained through local police departments and not

cards which have been provided by the FAA. The current regulation

states that an approved FBI fingerprint card may be used. Although many

cards are approved by the FBI, only those cards issued by the FAA are

intended to be utilized for this program. This clarification is in

keeping with the agreement made between the FAA and the FBI regarding

the processing of the fingerprint cards, and will facilitate the entire

process.

Questions have been raised about whether individuals being

fingerprinted may be allowed to submit their own cards with money

orders to the FAA. Paragraph (e)(2) clarifies that individuals may not

handle or possess the fingerprint card on which their prints have been

taken.

The last point of clarification addresses the cost of processing

fingerprints, which have increased from the time the Final Rule was

issued in October 1995. The difference between the total current

processing cost of $28.00, and the fee found in the current

regulations, $24.00, is being paid by the FAA. Upon the effective date

of a final rule, the entire cost of processing the fingerprint cards

will be assessed to both airport operators and air carriers. In

anticipation of future changes in the cost of processing, the FAA

proposes that the applicable fee will be provided through the local FAA

security offices to air carriers and airport operators.

A point worth reiterating here is that if the first, or subsequent,

set of fingerprints is not classifiable, another set of prints must be

submitted. The employment background investigation is not considered

complete until the regulated party either receives and follows upon the

information contained in the criminal history record or has received a

``no record'' transmittal.

Sections 108.33(f) and 107.31(f), Determination of Arrest Status

No changes have been made.

Sections 108.33(g) and 107.31(g), Availability and Correction of FBI

Records and Notification of Disqualification

These paragraphs contain some of the elements in current sections

108.33(g) and 107.31(k), respectively. The proposal consolidates the

regulated parties' responsibilities regarding notification based on an

individual's criminal record. No substantive changes have been made.

Sections 108.33(h) and 107.31(h), Corrective Action by Individuals

These paragraphs set out in the process by which an individual may

challenge information that they believe to be incorrectly contained in

their criminal history record. Some of the information was previously

contained in sections 108.33(g) and 107.31(g). No substantive changes

have been made.

Sections 108.33(i) and 107.31(i), Limits on Dissemination of Results

No changes have been made.

Sections 108.33(j) and 107.31(j), Employment Status

These new paragraphs clarify the status of those persons awaiting

the results of their fingerprint card submissions. They restate the

current requirement to escort those who are seeking, but have not

cleared for, unescorted SIDA access. Section 108.33(j) proposes that

those individuals applying for screening functions and for screening

supervisory positions may not make independent judgments until their

employment background investigation is completed.

Sections 108.33(k) and 107.31(k), Recordkeeping

The proposal clarifies the intent of the responsibilities of the

regulated parties under the current unescorted access rule. This

proposal reinforces the responsibilities related to the maintenance and

control of the entire employment background investigative file. Special

emphasis has been placed, due to previous confusion, on the handling

and destruction of the criminal history records. A discussion of the

rules governing who may access, maintain, and destroy the FBI criminal

record was included in the preamble to the unescorted access final

rule. The FBI has advised the FAA of its strict interpretation of the

responsibilities and obligations regarding the handling and destruction

of the criminal history records provided to regulated parties. As a

result, the FAA is proposing that only direct employees of airport

operators or air carriers may carry out responsibilities related to the

request, receipt, review, maintenance, and destruction of the

information contained within the criminal history record, as well as

the criminal history record itself. Contract employees are not

considered direct employees. This proposal is consistent with current

FBI requirements in 28 CFR 20.33.

Sections 108.33(l) and 107.31(l), Continuing Responsibilities

Under these paragraphs those individuals who are granted unescorted

SIDA access and those who have been given the responsibility to perform

the listed screening functions or supervisory duties would be obligated

to report themselves to their employer should they subsequently be

convicted of any disqualifying crime. The FAA also proposes that the

tenant employer or contractor employer must report to the airport

operator or the air carrier, as appropriate, either while the

employment investigation is ongoing or afterwards, that an individual

may have a possible conviction of a disqualifying crime. Should this

information be obtained after the individual has been cleared for

unescorted access or to perform screening or supervisory functions in

Secs. 107.31(a) or 108.33(a), the tenant or contractor employer would

be required to report it. The FAA proposes that once this information

becomes available to airport or the air carrier, the regulated party

would have to determine the status of the conviction

[[Page 13265]]

and take appropriate action if the conviction is confirmed.

Section 108.33(m), Air Carrier Responsibilities

This proposal clarifies air carrier's responsibility regarding the

location of employment background investigation files that may not have

been adequately addressed in the unescorted access privilege rule. It

was the intent of the FAA under that rule to have the employment

background investigation files available for inspection by the FAA at

the airport where the air carrier has made a certification to the

airport operator under Sec. 107.31 for the issuance of airport media.

Paragraph (m)(1) of the proposal would make this an explicit obligation

and require the air carrier to designate an individual at each airport

to control and maintain the files.

Under paragraph (m)(2) of the proposed rule, the air carrier also

would be required to designate an individual to oversee the control of

the employment background investigation files of individuals covered by

section 108.33(a)(2), (3), or (4). This would include screeners and

their supervisors, as well as individuals issued air carrier

identification media, for whom no certification was made to an airport

operator under section 107.31(n).

Paragraph (m)(3) would add a requirement for the air carrier to

audit the accuracy and completeness of the employment background

investigations being conducted on both its employees and contractor

employees. The depth of this audit should be specific enough to provide

the regulated party with information regarding the level of

thoroughness being applied to the investigations. This review should be

completed with enough sufficiency to allow the regulated parties to

make determinations on any needed improvements required to maintain

compliance with the regulation. This proposed audit may serve as a

management tool for the regulated party; however, it does not relieve

the party of the responsibility to review each employment background

investigation for compliance with the regulation, to include reviewing

determinations made to initiate a criminal history records check and

requisite resolutions. The details of the audit will be further defined

in the regulated party's security program. Regulated parties may

anticipate that the FAA will develop minimum audit standards to be

applied to air carriers and airport operators as part of their security

programs.

Section 107.31(m), Exception

Based on information the FAA has obtained regarding the processing

of U.S. Customs Service (USCS) background investigations, it has been

determined that the exception provided for in the current 107.31(e)(4)

should no longer be recognized. It has been determined that current

USCS background investigations no longer meet the requirements of the

FAA employment background investigation. Therefore, the FAA proposes to

remove this exception.

Section 107.31(n), Investigations by Air Carrier and Tenants

The FAA proposes that when the airport operator chooses to accept a

certification from a tenant under section 107.31(n)(2), to include

foreign air carriers, the operator must also collect and maintain the

entire employment background investigation file upon which the

certification is based. This will help ensure that the investigations

are properly completed and assist the airport operator in documenting

the information needed for an effective oversight and audit process.

Section 107.31(o), Airport Operator Responsibility

It remains the airport operator's responsibility to designate the

airport security coordinator (ASC) responsible for reviewing and

controlling the results of the employment background investigations,

which will now include employment background investigation files

submitted with tenant certifications. If criminal history records are

requested, the ASC will continue to serve as the contact to receive

notification, if necessary, from individuals of their intent to correct

their criminal history record. A new paragraph 107.31(o)(3) proposes to

require the airport operator to audit the accuracy and completeness of

the background investigations being conducted on its employees and

tenant employees. The details of the audit process will be included

under the security program, similar to the proposal for air carriers

under section 108.33(m).

Economic Summary

The FAA has determined that this proposed rule is not a

``significant rulemaking action,'' as defined by Executive Order 12866

(Regulatory Planning and Review). The anticipated costs and benefits

associated with this proposed rule are summarized below. (A detailed

discussion of costs and benefits is contained in the full evaluation in

the docket for this proposed rule.)

In 1995, the FAA issued a final rule to perform a 10-year

employment review, with a potential for the conduct of a criminal

history records check, of all individuals with unescorted access to the

SIDA. This check was instituted as a measure to ensure that all

individuals with such unescorted access privileges could account for

all their time in the previous 10 years and that they had not been

convicted of enumerated criminal offenses during that time. Specific

standards, if met, would require the performance of a criminal

background check in order for the individual to be further considered

for unescorted access to the SIDA. Convictions for certain crimes could

provide an indication of an individual's predisposition for criminal or

terrorist acts; such individuals could pose threats to aviation

security.

Certain key individuals are not covered under the current rule, and

these include screening personnel. In the wake of an increased

terrorism threat to Americans in general and American aviation in

particular, the U.S. Congress authorized and mandated that the FAA

extend these employment background checks to a new set of aviation

employees. These include persons responsible for the screening of

passengers and property and their supervisors. This Notice of Proposed

Rulemaking (NPRM) proposes to implement this specific portion of the

legislation.

In order to avoid duplication of employment background checks by

entities involved at the airports, the FAA originally granted

exceptions to the requirements for a 10-year employment review. One

such exception was to allow the airport operators to accept the U.S.

Customs Service (USCS) seal or hologram which was granted to an

individual after a USCS background check is conducted. It has been

determined that USCS background checks do not meet the requirements of

FAA regulations. The FAA is proposing this exception no longer be

recognized.

The Office of Civil Aviation Security Operations conducted an audit

of employment background checks required to be maintained by airport

operators and air carriers. The FAA is proposing that airport operators

and air carriers audit employment background investigations that are

conducted in compliance with the regulations to ensure that they are in

compliance.

[[Page 13266]]

Cost of Compliance

The FAA has performed an analysis of the expected costs and

benefits of this regulatory proposal. In this analysis, the FAA

estimated costs for a 10-year period, from 1997 through 2006. As

required by the Office of Management and Budget (OMB), the present

value of this stream, was calculated using a discount factor of 7

percent. All costs in this analysis are in 1995 dollars.

There are currently 18,000 screeners and screener supervisors

filling 12,000 full time equivalent (FTE) positions. Industry estimates

break this down into 16,818 screeners filling 10,818 positions, 1,082

full time checkpoint security supervisors (CSS's), and 100 full time

shift supervisors. The analysis assumes loaded hourly wages of $5.70

for screeners, $6.75 for CSS's, and $11.00 for shift supervisors.

Industry sources report, on average, annual turnovers of 115% for all

screeners, 90% for CSS's, and 20% for shift supervisors. This turnover

rate, of course, will vary by airport and location. Given the

difficulty of discerning the actual turnover rates at individual

airports, the FAA has opted to perform this analysis using a macro

approach and will use these turnover rates for the entire industry. In

addition, this analysis assumes that the number of screeners will grow

at an annual rate of 1.5%.

There are three cost components that need to be considered when an

employee's application triggers the necessity of a criminal history

records check. These involve the fee for processing fingerprints; the

time for a paperwork/clerk specialist to take the fingerprints, do the

requisite paperwork, and mail the forms; and the need for this employee

to be supervised.

Currently, a fingerprint check takes, on average, 54 days to be

processed. During this time period, this particular employee, if hired,

would need to be supervised. This employee's productivity would be low

for he or she would not be able to exercise any independent judgment;

all screened baggage would also need to be checked by this employee's

supervisor, and this employee would not be able to do tasks such as

using the metal detector or hand wand, or perform a physical search. On

the other hand, at times, this employee might be doing tasks that do

not need 100% attention from a supervisor, such as placing bags on the

belt. Accordingly, the FAA will use a 15% productivity rate in this

analysis, but calls for comment.

The alternative would be not to hire the employee until the results

of the fingerprint check come back. Given the high turnover rate of

screeners, there is a good likelihood at many airports that this person

could then be hired based on another job opening.

The FAA examined the cost of both of these alternatives. The lower

cost alternative would be not to hire this person until the fingerprint

check results return; in such a situation, the only costs would be the

costs of fingerprinting the employee. The higher cost alternative would

be to hire this person and pay them even though their productivity

would be low. Screeners would be supervised by another screener, at a

total cost of about $1,850. CSS's would be supervised by another CSS,

at a total cost of about $2,180.

The current processing fee for a fingerprint investigation is $28;

the FAA has been paying the difference between that and the current

published fee of $24. Under the proposal, the cost of fingerprinting

would remain the same; there would be no additional costs to society

from these changes. Employers and/or employees would pay the entire

cost (with employees proscribed from handling the fingerprint cards),

while the FAA would no longer pay the $4 difference. Hence these

incremental changes cancel each other out.

The FAA collected data on the results of the first eight months of

the current rule. Of the applications that were processed 0.4% of

applicants needed to be fingerprinted and because a negligible amount

had a prior criminal conviction which disqualified them, this analysis

will use 0%. In the absence of other information, the FAA will use

these percentages in estimating the costs of this proposed rule. Due to

both the growth rate in screeners and the annual turnover rates, the

FAA estimates that the 10-year costs would range from $41,000 (net

present value, $29,000) to $1.31 million (net present value, $916,000)

with the latter including the cost of supervision.

The FAA anticipates that there would be cost in removing the USCS

exemption in the current Sec. 107.31, but does not have the information

necessary to calculate it, so calls for comment on the number of

airport employees who currently were granted unescorted access due to a

background check from the USCS. Domestic airports that have a USCS

operations present have the option, for specific employees, of granting

SIDA access by conducting the employment background checks itself or

they may accept the USCS' background check. Using the latter option

would cost the airport nothing while using the former would have the

potential for significant cost.

The FAA believes that at some of the larger airports, there may be

several hundred employees that would be affected by the proposed rule

change; given future employee growth and replacement, the costs would

not be negligible. However, there is no definitive source as to how

many such employees exist. It is important to note that no employee who

received unescorted access based on an employment check from USCS would

have to undergo a new check.

This proposal would add a new requirement that would require the

airport operators and air carriers to review the employment background

documentation of their own employees as well as any appropriate

contractors or, in the case of airports, tenants. Reviewing the results

of employment background investigations would be a new requirement for

both airports and air carriers. They would need to develop and carry

out processes by which they would examine the accuracy and completeness

of the employment background investigations being accomplished on all

of its employees.

The actual percentage to be audited may vary by airport and air

carrier and would be included in each individual security program. This

analysis will estimate costs on the assumption that, on average, 5

percent of all employment background investigations would be checked.

The average check would involve a paperwork/clerk specialist going

through the employee's application and checking to make sure that all

items were accurate. The FAA estimates that the average investigation

would cost approximately $55.

Based on the number of employees at airports with unescorted access

privileges, specific employee growth rates, and annual attrition rates,

the FAA calculates 10 year costs for the airports to be $3.50 million

(net present value, $2.41 million). Meanwhile, the air carriers would

need to run checks on the screeners and screener supervisors that are

hired during this time period. The 10-year costs for the airports sum

to $618,500 (net present value, $430,800).

The 10-year cost of this proposed rule would range from $4.16

million (net present value, $2.87 million) to $5.44 million (net

present value, $3.76 million).

Analysis of Benefits

The proposed rule to amend parts 107 and 108 is intended to enhance

aviation safety. The primary benefit of the proposed rule would be to

strengthen airport and air carrier security. Aviation security is

achieved through an intricate set of interdependent requirements. It

[[Page 13267]]

would be difficult to separate out any current existing requirement or

any proposed change and identify to what extent that requirement or

that change, alone, would prevent a criminal or terrorist act in the

future. Certainly, it would be difficult to show that this proposal,

alone, would be solely responsible for preventing future such

incidents.

President Clinton, in July 1996, declared that the threat of both

foreign and domestic terrorism to aviation is a national threat. The

U.S. Congress recognized this threat in the Act by: (1) Authorizing

money for the purchase of specific anti-terrorist equipment, and the

hiring of extra security personnel; and (2) requiring the FAA to

promulgate additional security-related regulations. This proposal seeks

to establish one of these security-related regulations.

Since the mid-1980's, the major goals of aviation security have

been to prevent bombing and sabotage incidents. Preventing an explosive

or incendiary device from getting on board an airplane is one of the

major lines of defense against an aviation-related criminal or

terrorist act. The individuals covered by this proposed rule play a

major role in preventing such occurrences. Requiring an employment

background check, and as needed the subsequent criminal history record

check of a person covered under this proposed rule, could reveal

information which could point out a susceptibility of the individual to

be involved or to become involved in criminal or terrorist activity.

Such individuals could definitely be a threat to aviation security.

The most deadly and expensive example of the type of explosion that

aviation security is trying to prevent is the Pan Am 103 tragedy over

Lockerbie, Scotland. A conservative estimate of the costs associated

with this catastrophe yields $1.4 billion. While the specific proposals

in this proposed regulation may not, by themselves, have prevented this

tragedy, this cost underscores the consequences of not taking prudent

security-related steps.

Some benefits can be quanti--prevention of fatalities and injuries

and the loss of aircraft and other property. Other benefits are no less

important, but are probably impossible to quantify--the perception of

improved security on the part of the traveling public, and general

gains for the U.S. attributable to the commitment to enhance aviation

security.

Comparison of Costs and Benefits

The 10-year cost of this proposed rule would range from $4.16

million (net present value, $2.87 million) to $5.44 million (net

present value, $3.76 million). This cost needs to be compared to the

possible tragedy that could occur if a bomb or some other incendiary

device were to get onto an airplane and cause an explosion. Recent

history not only points to Pan Am 103's explosion over Lockerbie,

Scotland, but also the potential of up to twelve American airplanes

being blown up in Asia in early 1995. While the specific proposals in

this proposed regulation may not, by themselves, have been factors in

the occurrence of Pan Am 103 or the prevention of the culmination of

the conspiracy in Asia, these potential devastating costs emphasize the

consequences of not taking sensible security-related steps.

Congress has mandated that the FAA promulgate these proposed

regulations. Congress, which reflects the will of the American public,

has determined that this proposed regulation is in the best interest of

the nation. Because this proposed regulation reflects the will of the

American people, and because its cost is low compared to the potential

catastrophe of a single bomb explosion on an airplane, the FAA finds

this propose rule cost-beneficial.

Initial Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA) was enacted by

Congress to ensure that small entities are not unnecessarily burdened

by government regulations. The RFA requires agencies to review rules

that may have a ``significant economic impact on a substantial number

of small entities.''

The FAA's criterion for a ``substantial number'' is a number that

is not less than 11 and that is more than one third of the small

entities subject to the rule. For operators of aircraft for hire, a

small operator is not that owns, but not necessarily operates, nine or

fewer aircraft. The FAA's criteria for ``significant impact'' are

$4,900 or more per year for an unscheduled operator, $124,000 or more

per year for a scheduled operator whose entire fleet is made up of

airplanes with over 60 seats, and $69,000 or more per year for other

scheduled carriers.

Meanwhile, a small airport is one owned by a country, city, town or

other jurisdiction having a population of 49,999 or less. If two or

more towns, cities, or counties operate an airport jointly, the

population size of each is totaled to determine whether that airport is

categorized as a small entity. The threshold annualized cost level of

$8,000.

Only scheduled carriers and public charters are required to conduct

screening. The total cost for a screener or a CSS whose application

triggers a background check, and who is hired for the 54 day

investigatory process, would be $1,758.86 and $2,082.86, respectively.

An investigation would cost $55.28, so the highest possible annual cost

for a screener would be $1,862.24 and for a CSS would be $2,186.24. A

scheduled air carrier would need to have either 38 new screeners or 32

new CSS's in a single year, needing a background check, to exceed

$69,000. The analysis that no more than 91 screeners would need an

employment background check in any given year. It is extremely unlikely

that one individual air carrier would decide to hire, through screening

companies, 42% of those screeners, especially given the low

productivity of these employees for this time period.

Meanwhile, because almost all CSS's move up through the ranks

rather than being hired from the outside, they would have already been

subject to the requisite investigations, if they were necessary. Based

on projected annual growth and turnover rates as well as assumed

percentage of employees needing fingerprint checks, this analysis

assumes that no CSS would be subject to an employment background check.

Hence, no scheduled air carrier would have these costs exceed $69,000.

The only small entity airports that would have unescorted access

privileges would have less than 2 million person screenings per year.

At such airports, an average of 554 employees have such access. Hence,

in any given year, no more than 28 employees would have their

applications checked. At $55.28 per investigation, the airport

operators costs would equal $1,548, which is less than the threshold

cost.

Accordingly, the annual costs expected to be imposed on small

operators would not exceed the thresholds for significant impact

outlined above. Therefore, the FAA finds that this proposed rule would

not have a significant economic impact on a substantial number of small

entities.

International Trade Impact Statement

In accordance with the Office of Management and Budget memorandum

dated March 1983, federal agencies engaged in rulemaking activities are

required to assess the effects of regulatory changes on international

trade. Since both domestic and international air carriers use

screeners, this proposed rule change would have an equal effect on

both. Unlike domestic air carriers that compete with foreign air

carriers, domestic airports are not in competition with foreign

airports. For

[[Page 13268]]

this reason, a trade impact assessment would not be applicable for

domestic airports.

Unfunded Mandate

Title II of the Unfunded Mandates Reform Act of 1995 (the Reform

Act), enacted as Public Law 104-4 on March 22, 1995, requires each

Federal agency, to the extent permitted by law, to prepare a written

assessment of the effects of any Federal mandate in a proposed or final

agency rule that may result in the expenditure by State, local, and

tribal governments, in the aggregate, or by the private sector, of $100

million or more (adjusted annually for inflation) in any one year.

Section 204(a) of the Reform Act, 2 U.S.C. 1534(a), requires the

Federal agency to develop an effective process to permit timely input

by elected officers (or their designees) of State, local and tribal

governments on a proposed ``significant intergovernmental mandate.'' A

``significant intergovernmental mandate'' under the Reform Act is any

provision in a Federal agency regulation that would impose an

enforceable duty upon State, local, and tribal governments, in the

aggregate, of $100 million (adjusted annually for inflation) in any one

year. Section 203 of the Reform Act, 2 U.S.C. 1533, which supplements

section 204(a), provides that before establishing any regulatory

requirements that might significantly or uniquely affect small

governments, the agency shall have developed a plan that among other

things, provides for notice to potentially affected small governments,

if any, and for a meaningful and timely opportunity to provide input in

the development of regulatory proposals.

This proposed rule does not contain any significant Federal

intergovernmental or private sector mandate. Therefore, the

requirements of Title II of the Reform Act do not apply.

Federalism Implications

The regulations proposed herein do not have a substantial direct

effect on the States, on the relationship between the national

government and the States, or on the distribution of power and

responsibilities among the various levels of government. Therefore, in

accordance with Executive Order 12612, it is determined that this

proposed rule does not have federalism implications warranting the

preparation of a Federalism Assessment.

International Civil Aviation Organization (ICAO) and Joint Aviation

Regulations

In keeping with U.S. obligations under the Convention on

International Civil Aviation, it is FAA policy to comply with ICAO

Standards and Recommended Practices to the maximum extent practicable.

The FAA finds no corresponding International Civil Aviation

Organization regulations or Joint Aviation Regulations; therefore, no

differences exist.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1955, 44 U.S.C.

3501 et seq., the information collection requirements associated with

this rule are being submitted to the Office of Management and Budget

for review.

The unescorted access privilege requirements for Parts 107 and 108

have been previously assigned Office of Management and Budget (OMB)

Control No. 2120-0564. This NPRM, although it has a different title,

applies the same recordkeeping requirements for unescorted access to a

different population, as required under the Federal Aviation

Reauthorization Act of 1996. The additional population affected are

those individuals, and their supervisors, who perform screening

functions related to the persons and property which are carried aboard

the cabin of an aircraft engaged in air transportation. The statute

also provides for background checks on those who perform cargo and

baggage security related functions, as the Administrator determines is

necessary. Comments are requested from the public. Based on those

comments, persons or positions may be specifically designated, and may

be included in the final rule.

The employment background information is collected from those who

apply for positions listed in the previous paragraph. The information

is collected by either the airport operator or the air carrier who is

seeking to employ persons to perform those functions at any U.S.

airport operating under Part 107. The purpose of the employment review

is to determine if any one of four standards is met; if so, an FBI

criminal history records check must be performed if the person is to be

further considered for performing the listed functions. Lacking

evidence that such a review was completed, either the airport operator

or the air carrier, whomever is the regulated party, may be subject to

a violation which could carry a civil penalty. An addition which will

be covered under this NPRM is that the airport operators and air

carriers conduct a periodic audit on the completed employment

background applications. The process implemented by each regulated

party will be described and added to their respective security

programs. The time needed to update the security programs with this

information is estimated to take 2 hours. Further it is estimated that

this addition to the security program will only occur once. The total

estimated burden is based on 2 hours times 574 (443 airports + 131 air

carriers), for a total of 1,148 hours.

The FAA considers comments by the public on the proposed collection

of information in order to evaluate the accuracy of the estimate of the

burden of the proposed collection of information, the quality, utility

and clarify of the information to be collected, and possible ways to

minimize the burden of the collection.

In submitting comments to OMB, commenters should keep in mind that

OMB is required to make a decision concerning the collection of

information contained in the proposed regulations between 30 and 60

days after publication of this document in the Federal Register.

Comments on the proposed information collection requirements should

be submitted to: Office of Management and Budget, Washington, DC 20503,

Attention: Desk Officer for the Federal Aviation Administration, U.S.

Department of Transportation. It is requested that comments sent to OMB

also be sent to the FAA at the address listed in the comments section.

Conclusion

The FAA has determined that this proposed regulation is not a

significant rule under Executive Order 12866; and is not a significant

proposed rule under Department of Transportation Regulation Policies

and Procedures (44 FR 11034; February 26, 1979). Also, for the reasons

stated under the headings ``Trade Impact Statement'' and ``Regulatory

Flexibility Determination,'' the FAA certifies that the NPRM will not

have a significant economic impact on small entities. A copy of the

full regulatory evaluation is filed in the docket and may also be

obtained by contacting the person listed FOR FURTHER INFORMATION

CONTACT.

List of Subjects in 14 CFR Parts 107 and 108

Air carriers, Air transportation, Airlines, Airplane operator

security, Aviation safety, Reporting and record keeping requirements;

Security measures, Transportation, Weapons.

The Proposed Amendments

For the reasons set forth in the preamble, it is proposed to amend

14 CFR Chapter I as follows:

[[Page 13269]]

PART 107--AIRPORT SECURITY

1. The authority citation for Part 107 is revised to read as

follows:

Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702,

44706, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105;

Sec. 306, Pub. L. 104-264, 110 Stat. 3213, 49 U.S.C. 44936.

2. Section 107.31 is revised to read as follows:

Sec. 107.31 Employment history, verification and criminal history

records checks.

(a) Applicability. On or after January 31, 1996, this section

applies to all individuals seeking authorization for, or seeking the

authority to authorize others to have, unescorted access privileges to

the security display area (SIDA) that is identified in Sec. 107.25 of

this part.

(b) Employment background investigations required. Except as

provided in paragraph (m) of this section, each airport operator shall

ensure that no individual is granted authorization for, or is granted

authority to authorize others to have, unescorted access to the SIDA

unless the following requirements are met:

(1) The individual has satisfactorily undergone a review covering

the past 10 years of employment history and verification of the 5 years

preceding the date the employment background investigation is initiated

as provided in paragraph (c) of this section; and

(2) The results of the employment background investigation do not

disclose that the individual has been convicted or found not guilty by

reason of insanity, in any jurisdiction, during the 10 years ending on

the date of such investigation, of a crime involving any of the

following crimes enumerated in paragraphs (b)(2) (i) through (xxv) of

this section. Where specific citations are listed, both the current

citation and the citation that applied before the statute was

recodified in 1994 are listed.

(i) Forgery of certificates, false marking of aircraft, and other

aircraft registration violation, 49 U.S.C. 46306 [formerly 49 U.S.C.

App. 1472(b)];

(ii) Interference with air navigation, 49 U.S.C. 46308 [formerly 49

U.S.C. App. 1472(c)];

(iii) Improper transportation of a hazardous material, 49 U.S.C.

46312 [formerly 49 U.S.C. App. 1472(b)(2)];

(iv) Aircraft piracy, 49 U.S.C. 46502 [formerly 49 U.S.C. App.

1472(i);

(v) Interference with flight crew members or flight attendants, 49

U.S.C. 46504 [formerly 49 U.S.C. App. 1472(j)];

(vi) Commission of certain crimes aboard aircraft in flight, 49

U.S.C. 46506 [formerly 49 U.S.C. App. 1472(k)];

(vii) Carrying a weapon or explosive aboard aircraft, 49 U.S.C.

46505 [formerly 49 U.S.C. App. 1472(l)];

(viii) Conveying false information and threats, 49 U.S.C. 46507

[formerly 49 U.S.C. App. 1472(m)];

(ix) Aircraft piracy outside the special aircraft jurisdiction of

the United States, 49 U.S.C. 46502(b) [formerly 49 U.S.C. App.

1472(n)];

(x) Lighting violations involving transporting controlled

substances, 49 U.S.C. 46315 [formerly 49 U.S.C. App. 1472(q)];

(xi) Unlawful entry into an aircraft or airport area that serves

air carriers or foreign air carriers contrary to established security

requirements, 49 U.S.C. 46314 [formerly 49 U.S.C. App. 1472(r)];

(xii) Destruction of an aircraft or aircraft facility, 18 U.S.C.

32;

(xiii) Murder;

(xiv) Assault with intent to murder;

(xv) Espionage;

(xvi) Sedition;

(xvii) Kidnapping or hostage taking;

(xviii) Treason;

(xix) Rape or aggravated sexual abuse;

(xx) Unlawful possession, use, sale, distribution, or manufacture

of an explosive or weapon;

(xxi) Extortion;

(xxii) Armed robbery;

(xxiii) Distribution of, or intent to distribute, a controlled

substance;

(xxiv) Felony arson; or

(xxv) Conspiracy or attempt to commit any of the aforementioned

criminal acts.

(c) Investigative steps. The employment background investigation

shall consist of the following steps:

(1) The individual shall provide the following on an application

form:

(i) The individual's full name, including any aliases or nicknames.

(ii) The dates, names, phone numbers, and addresses of previous

employers, with explanations for any gaps in employment of more than 12

consecutive months, during the previous 10-year period.

(iii) Any convictions during the previous 10-year period of the

crimes listed in paragraph (b)(2) of this section.

(2) The airport operator shall include on the application form a

notification that the individual will be subject to an employment

history verification and possibly a criminal history records check.

(3) The airport operator shall verify the identify of the

individual through the presentation of two forms of identification, one

of which must bear the individual's photograph.

(4) The airport operator shall verify the information on the most

recent 5 years of employment history required under paragraph

(c)(1)(ii) of this section. Information shall be verified in writing,

by documentation, by telephone, or in person.

(5) If one or more of the following conditions exists, the

employment background investigation shall not be considered complete

unless it includes a check of the individual's fingerprint-based

criminal history record maintained by the Federal Bureau of

Investigation (FBI). The airport operator may request a check of the

individual's fingerprint-based criminal history record only if one of

more of the following conditions exists:

(i) The individual does not satisfactorily account for a period of

unemployment of 12 consecutive months or more during the previous 10-

year period.

(ii) The individual is unable to support statements made on the

application form.

(iii) There are significant inconsistencies in the information

provided on the application.

(iv) Information becomes available to the airport operator or the

tenant employer during the investigation indicating a possible

conviction for one of the crimes listed in (b)(2).

(d) Individual notification. Prior to commencing the criminal

history records check, the airport operator shall notify the affected

individual and identify the Airport Security Coordinator as the point

of contact for follow-up.

(e) Fingerprint processing. The airport operator shall collect and

process fingerprints in the following manner:

(1) One set of legible and classifiable fingerprints shall be

recorded on fingerprint cards approved by the FBI, and distributed by

the FAA for this purpose.

(2) The fingerprints shall be obtained from the individual under

direct observation by the airport operator or a law enforcement

officer. Individuals submitting their fingerprints shall not take

possession of their fingerprint card after they have been

fingerprinted.

(3) The identity of the individual shall be verified at the time

fingerprints are obtained. The individual shall present two forms of

identification, one of which must bear the individual's photograph.

(4) The fingerprint card shall be forwarded to Federal Aviation

Administration, 800 Independence Ave, S.W., Washington, D.C. 20591

(ATTN: ACO-300, Fingerprint Processing).

(5) Fees for the processing of the criminal checks are due upon

application. Airport operators shall

[[Page 13270]]

submit payment through corporate check, cashier's check, or money order

made payable to ``U.S. FAA,'' at the prevailing rate for each

fingerprint card. Combined payment for multiple applications is

acceptable. The prevailing rate for processing the fingerprint cards is

available from the local FAA security office.

(f) Determination of arrest status. In conducting the criminal

history records check required by this section, the airport operator

shall investigate arrest information for the crimes listed in paragraph

(b)(2) of this section for which no disposition has been recorded to

make a determination on the outcome of the arrest.

(g) Availability and correction of FBI records and notification of

disqualification.

(1) At the time the fingerprints are taken, the airport operator

shall notify the individual that a copy of the criminal history record

received from the FBI will be made available if requested in writing.

When requested in writing, the airport operator shall make available to

the individual a copy of any criminal record received from the FBI.

(2) Prior to making a final determination to deny authorization to

individuals described in paragraph (a) of this section, the airport

operator shall advise individuals that the FBI criminal history record

discloses information that would disqualify them from positions covered

under this rule and provide each individual with a copy of their FBI

record if it has been requested.

(3) The airport operator shall notify an individual that a final

determination has been made to grant or deny authority for unescorted

access.

(h) Corrective action by individuals. Individuals may contact the

local jurisdiction responsible for the information and the FBI to

complete or correct the information contained in their record before

any final determination is made, subject to the following conditions:

(1) Within 30 days after being advised that the criminal history

record received from the FBI discloses disqualifying information,

individuals must notify the airport operator, in writing, of their

intent to correct any information believed to be inaccurate.

(2) Upon notification by an individual that the record has been

corrected, the airport operator must obtain a copy of the revised FBI

record prior to making a final determination.

(3) If no notification is received within 30 days, the airport

operator may make a final determination.

(i) Limits on dissemination of results. Criminal history record

information provided by the FBI shall be used solely for the purposes

of this section, and no person shall disseminate the results of a

criminal history records check to anyone other than:

(1) The individual to whom the record pertains or that individual's

authorized representative;

(2) Airport officials with a need to know; and

(3) Others designated by the Administrator.

(j) Employment status while awaiting criminal record checks.

Individuals who have submitted their fingerprints and are awaiting FBI

results may perform work within the SIDA when under escort by someone

who has unescorted SIDA access privileges.

(k) Recordkeeping. It is the airport operator's responsibility to

make any criminal history records request as appropriate to this

regulation, to receive and review the criminal history records of

applicants, and to maintain and destroy these sensitive documents. The

criminal record responsibilities shall be carried out only by direct

airport operator employees. The airport operator shall maintain and

control in a manner acceptable to the Administrator the following

written records for each individual until 180 days after the

termination of the individual's authority for unescorted access or the

individuals authority to authorize others to have unescorted access:

(1) A record of each individual subject to an employment background

investigation that includes:

(i) The application;

(ii) The employment verification information obtained by the

employer;

(iii) The names of those from whom the employment verification

information was obtained;

(iv) The date and the method of how the contact was made; and

(v) Any other information as required by the Administrator.

(2) A record for each individual subject to a criminal history

records check shall include, in addition to the records in paragraph

(k)(1) of this section, the results of the record check, or a

certification by the airport operator or air carrier that the check was

completed and did not uncover a disqualifying conviction.

(l) Continuing responsibilities.

(1) Any individual authorized to have unescorted access privileges

or who may authorize others to have unescorted access privileges who is

subsequently convicted of any of the crimes listed in paragraph (b)(2)

of this section shall report the conviction to the airport operator and

surrender the SIDA access medium within 24 hours to the issuer.

(2) If information becomes available to the airport operator or the

tenant employer indicating that an individual has a possible conviction

for one of the disqualifying crimes in paragraph (b)(2) of this

section, the airport operator shall determine the status of the

conviction. If a disqualifying conviction is confirmed the airport

operator shall withdraw any authority granted under this section.

(m) Exceptions. Notwithstanding the requirements of this section,

an airport operator may authorize the following individuals to have

unescorted access to the SIDA or perform functions listed in paragraph

(a) of this section:

(1) Employees of the Federal government or a state or local

government (including law enforcement officers) who, as a condition of

employment, have been subject to an employment investigation which

includes a criminal history records check.

(2) Crew members of foreign air carriers covered by an alternate

security arrangement in the approved airport security program.

(3) An individual who has been continuously employed in a position

requiring unescorted access by another airport operator, airport tenant

or air carrier.

(n) Investigations by air carriers and tenants. An airport operator

will be deemed to be in compliance with its obligation under paragraph

(b) of this section, as applicable, when it accepts one of the

following:

(1) certification from an air carrier subject to section 108.33 of

this chapter that it has complied with section 108.33 (b)(1) and (b)(2)

for the individual, or

(2) certification from a tenant that it has complied with paragraph

(b)(1) of this section for the individual, and the tenant includes the

completed employment background investigation file.

(o) Airport operator responsibility. The airport operator shall:

(1) Designate the airport security coordinator to be responsible

for reviewing and controlling the results of the employment background

investigation;

(2) Designate the airport security coordinator to serve as the

contact to receive notification from individuals applying for

unescorted access of their intent to seek correction of their criminal

history record with the FBI; and

(3) Audit the employment background investigations performed in

accordance with this section, except those employment background

investigations subject to certification under paragraph

[[Page 13271]]

(n)(1). The audit process shall be set forth in the airport security

program.

PART 108--AIRPLANE OPERATOR SECURITY

3. The authority citation for Part 108 is revised to read as

follows:

Authority: 49 U.S.C. 106(g), 40101, 40102, 40113, 40119, 44701-

44713, 44901-44915, 44931-44937, 46105; Sec. 306, Pub. L. 104-264,

110 Stat. 3213, 49 U.S.C. 44936.

4. Section 108.33 is revised to read as follows:

Sec. 108.33 Employment history, verification and criminal history

records checks.

(a) Applicability.

(1) This section applies to each individual covered under a

certification made to an airport operator pursuant to section 107.31(n)

of this chapter.

(2) This section applies to each individual who is issued

identification media that one or more airports approve for unescorted

access within a security identification display area (SIDA) that is

identified in Sec. 107.25 of this chapter.

(3) This section applies to each individual who, after [insert

effective date of rule], is hired to perform the following functions:

(i) Screens passengers or property that will be carried in a cabin

of an aircraft of an air carrier required to screen passengers under

this part.

(ii) Serves as an immediate supervisor, also known as a security

checkpoint supervisor (CSS), to those individuals described in

paragraph (a)(3)(i) of this section or, serves at the next supervisory

level, commonly referred to as a shift or site supervisor.

(4) This section applies to each individual who was hired before

[insert effective date of rule] and who after [insert date 1 year after

the effective date of the rule] performs any of the functions

identified in paragraph (a)(3) of this section.

(b) Employment history investigations required. Each air carrier

shall ensure that the following requirements are met for each

individual identified under paragraph (a) of this section:

(1) The individual has satisfactorily undergone a review covering

the past 10 years of employment history and verification of the 5 years

preceding the date the employment background investigation is initiated

as provided in paragraph (c) of this section; and

(2) The results of the employment background investigation do not

disclose that the individual has been convicted or found not guilty by

reason of insanity, in any jurisdiction, during the 10 year ending on

the date of such investigation, of a crime involving any of the

following crimes enumerated in paragraphs (b)(2)(i) through (xxv) of

this section. Where specific citations are listed, both the current

citation and the citation that applied before the statute was

recodified in 1994 are listed.

(i) Forgery of certificates, false marking of aircraft, and other

aircraft registration violation, 49 U.S.C. 46306 [formerly 49 U.S.C.

App. 1472(b)];

(ii) Interference with air navigation, 49 U.S.C. 46308 [formerly 49

U.S.C. App. 1472(c)];

(iii) Improper transportation of a hazardous material, 49 U.S.C.

46312 [formerly 49 U.S.C. App. 1472(b)(2)];

(iv) Aircraft piracy, 49 U.S.C. 46502 [formerly 49 U.S.C. App.

1472(i);

(v) Interference with flight crewmember members or flight

attendants, 49 U.S.C. 46504 [formerly 49 U.S.C. App. 1472(j)];

(vi) Commission of certain crimes aboard aircraft in flight, 49

U.S.C. 46506 [formerly 49 U.S.C. App. 1472(k)];

(vii) Carrying a weapon or explosive aboard aircraft, 49 U.S.C.

46505 [formerly 49 U.S.C. App. 1472(l)];

(viii) Conveying false information and threats, 49 U.S.C. 46507

[formerly 49 U.S.C. App. 1472(m)];

(ix) Aircraft piracy outside the special aircraft jurisdiction of

the United States, 49 U.S.C. 46502(b) [formerly 49 U.S.C. App.

1472(n)];

(x) Lighting violations involving transporting controlled

substances, 49 U.S.C. 46315 [formerly 49 U.S.C. App. 1472(q)];

(xi) Unlawful entry into an aircraft or airport area that serves

air carriers or foreign air carriers contrary to established security

requirements, 49 U.S.C. 46314 [formerly 49 U.S.C. App. 1472(r)];

(xii) Destruction of an aircraft or aircraft facility, 18 U.S.C.

32;

(xiii) Murder;

(xiv) Assault with intent to murder;

(xv) Espionage;

(xvi) Sedition;

(xvii) Kidnapping or hostage taking;

(xviii) Treason;

(xix) Rape or aggravated sexual abuse;

(xx) Unlawful possession, use, sale, distribution, or manufacture

of an explosive or weapon;

(xxi) Extortion;

(xxii) Armed robbery;

(xxiii) Distribution of, or intent to distribute, a controlled

substance;

(xxiv) Felony arson; or

(xxv) Conspiracy or attempt to commit any of the aforementioned

criminal acts.

(c) Investigative steps. The employment background investigation

shall consist of the following steps:

(1) The individual shall provide the following information on an

application form:

(i) The individual's full name, including any aliases or nicknames.

(ii) The dates, names, phone numbers, and addresses of previous

employers, with explanations for any gaps in employment of more than 12

consecutive months, during the previous 10-year period.

(iii) Any convictions during the previous 10-year period of the

crimes listed in paragraph (b)(2) of this section.

(2) The air carrier shall include on their application form a

notification that the individual will be subject to an employment

history verification and possibly a criminal history records check.

(3) The air carrier shall verify the identity of the individual

through the presentation of two forms of identification, one of which

must bear the individual's photograph.

(4) The air carrier shall verify the information on the most recent

5 years or employment history required under paragraph (c)(1)(ii) of

this section. Information shall be verified in writing, by

documentation, by telephone, or in person.

(5) If one or more of the following conditions exists, the

employment background investigation shall not be considered complete

unless it includes a check of the individual's fingerprint-based

criminal history record maintained by the Federal Bureau of

Investigation (FBI). The air carrier may request a check of the

individual's fingerprint-based criminal history record only if one or

more of the following conditions exists:

(i) The individual does not satisfactorily account for a period of

unemployment of 12 months or more during the previous 10-year period.

(ii) The individual is unable to support statements made on the

application form.

(iii) There are significant inconsistencies in the information

provided on the application.

(iv) Information becomes available to the air carrier during the

investigation indicating a possible conviction for one of the crimes

listed in (b)(2).

(d) Individual notification. Prior to commencing the criminal

history records check, the air carrier shall notify the affected

individual and identify a point of contact for follow-up.

(e) Fingerprint processing. The air carrier shall collect and

process fingerprints in the following manner:

(1) One set of legible and classifiable fingerprints shall be

recorded on fingerprint cards approved by the FBI,

[[Page 13272]]

and distributed by the FAA for this purpose.

(2) The fingerprints shall be obtained from the individual under

direct observation by the air carrier or a law enforcement officer.

Individuals submitting their fingerprints shall not take possession of

their fingerprint card after they have been fingerprinted.

(3) The identity of the individual shall be verified at the time

fingerprints are obtained. The individual shall present two forms of

identification, one of which must bear the individual's photograph.

(4) The fingerprint card shall be forwarded to Federal Aviation

Administration, 800 Independence Ave., SW., Washington, DC 20591 (ATTN:

ACO-300, Fingerprint Processing).

(5) Fees for the processing of the criminal history record checks

are due upon application. Air carriers shall submit payment through

corporate check, cashier's check, or money order made payable to ``U.S.

FAA,'' at the prevailing rate for each fingerprint card. Combined

payment for multiple applications is acceptable. The prevailing rate

for processing the fingerprint cards is available from the local FAA

security office.

(f) Determinaiton of arrest status. In conducting the criminal

history records check required by this section, the air carrier shall

investigate arrest information for the crimes listed in paragraph

(b)(2) of this section for which no disposition has been recorded to

make a determination of the outcome of the arrest.

(g) Availability and correction of FBI records and notification of

disqualification.

(1) At the time the fingerprints are taken, the air carrier shall

notify the individual that a copy of the criminal history record

received from the FBI will be made available if requested in writing.

When requested in writing, the air carrier shall make available to the

individual a copy of any criminal history record received from the FBI.

(2) Prior to making a final determination to deny authorization to

individuals described in paragraph (a) of this section, the air carrier

shall advise individuals that the FBI criminal history record discloses

information that would disqualify them from positions covered under

this rule and provide each individual with a copy of their FBI record

if it has been requested.

(3) The air carrier shall notify an individual that a final

determination has been made to grant or deny authority for unescorted

access, or for performing functions listed under paragraph (a) (2),

(3), or (4) of this section.

(h) Corrective action by individuals. Individuals may contact the

local jurisdiction responsible for the information and the FBI to

complete or correct the information contained in their record before

any final access determination is made, subject to the following

conditions:

(1) Within 30 days after being advised that the criminal history

record received from the FBI discloses disqualifying information,

individuals must notify the air carrier, in writing, of their intent to

correct any information believed to be inaccurate.

(2) Upon notification by an individual that the record has been

corrected, the air carrier must obtain a copy of the revised FBI

criminal history record prior to making a final determination.

(3) If no notification is received within 30 days, the air carrier

may make a final determination.

(i) Limits on dissemination of results. Criminal history record

information provided by the FBI shall be used solely for the purpose of

this section, and no person shall disseminate the results of a criminal

history records check to anyone other than:

(1) The individual to whom the record pertains or that individual's

authorized representative;

(2) Air carrier officials with a need to know; and

(3) Others designated by the Administrator.

(j) Employment status while awaiting criminal record checks.

Individuals who have submitted their fingerprints and are awaiting FBI

results may perform work under the following conditions:

(1) Those seeking unescorted access to the SIDA must be escorted by

someone who has unescorted SIDA access privileges;

(2) Those applicants seeking positions covered under paragraphs

(a)(2), (3), or (4) of this section shall not exercise any independent

judgments regarding those functions.

(k) Recordkeeping. It is the air carrier's responsibility to make

any criminal history records request as appropriate to this regulation,

to receive and review the criminal history records of applicants, and

to maintain and destroy these sensitive documents. The criminal record

responsibilities shall be carried out only by direct air carrier

employees. The air carrier shall physically maintain and control in a

manner acceptable to the Administrator the following written records

for each individual until 180 days after ceasing to perform the

functions identified in paragraph (a) of this section.

(1) A record of each individual subject to an employment background

investigation that includes:

(i) The application;

(ii) The employment verification information obtained by the air

carrier;

(iii) The names of those from whom the employment verification

information was obtained;

(iv) The date and the method of how the contact was made; and

(v) Any other information as required by the Administrator.

(2) A record for each individual subject to a criminal history

records check shall include, in addition to the records in paragraph

(k)(1) of this section, the results of the records check, or a

certification by the air carrier that the check was completed and did

not uncover a disqualifying conviction.

(l) Continuing responsibilities. (1) Any individual authorized to

have unescorted access privilege to the SIDA or that perform functions

covered under paragraphs (a)(2), (3), or (4) of this section, who is

subsequently convicted of any of the crimes listed in paragraph (b)(2)

of this section, shall report the conviction within 24 hours to the air

carrier and surrender the SIDA access medium or any identification

medium provided to them related to positions covered under (a)(2), (3)

or (4) of this section.

(2) If information becomes available to the air carrier indicating

that an individual has a possible conviction for one of the

disqualifying crimes in paragraph (b)(2) of this section, the air

carrier shall determine the status of the conviction. If the conviction

is confirmed the air carrier shall withdraw any authority granted under

this section.

(m) Air carrier responsibilities. The air carrier shall--

(1) Designate an individual at each airport to control and maintain

the employment background investigation files of individuals for whom

the air carrier has made a certification to the airport operator under

Sec. 107.31(n)(1) of this chapter.

(2) Designate an individual, in the security program, to oversee

the control of employment background investigation files of individuals

subject to section 108.33(a) (2), (3), or (4). The files shall be kept

in a location or locations acceptable to the Administrator and

identified in the security program.

(3) Audit the employment background investigations performed in

accordance with this section. The audit process shall be set forth in

the air carrier approved security program.

[[Page 13273]]

Issued in Washington on March 14, 1997.

Anthony Fainberg,

Director, Office of Civil Aviation Security Policy and Planning.

[FR Doc. 97-6947 Filed 3-14-97; 3:19 pm]

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